Excerpt:.....sections 4, 3, 57-local government-vesting of powers on district magistrates-order passed by district magistrate-breach of order-first class magistrate invested as special magistrate under the ordinance-sentences passed by the magistrate.;under the powers given to the government of bombay by section 57 of the emergency powers ordinance, they issued a notification investing 'all district magistrates including the commissioner of police, bombay,' with their powers under section 4(1) of the ordinance.;the accused, a permanent resident of sholapur, was arrested under section 3 of the emergency powers ordinance, 1932, on january 6, 1932, and confined in the bijapur jail. whilst he was in such confinement, he was served with an order issued by the district magistrate of sholapur under..........rs. 12,000, but otherwise dismissed the appeal.2. the accused was arrested under an order of the district magistrate of sholapur on january 6, 1932, and was sent to bijapur jail. on february 25, an order was made, to the terms of which i will refer more particularly presently, but the general effect of the order, so far as is material, was that the accused should, within eighteen hours from leaving custody, report himself to the police sub-inspector at karmala, and thereafter should not leave the limits of karmala, and that he should not, without the permission of the district magistrate, enter the area comprised in sholapur taluka excepting railway limits. that order was not served on the accused until march 3, but apparently its effect was communicated to him, and on february 28, he.....

Judgment:

John Beaumont, C.J.

1. This is an application in revision by one Gulabchand Hirachand Doshi who was convicted on April 11, 1932, by the First Class City Magistrate of Sholapur for disobeying an order made under Section 4 of the Emergency Powers Ordinance, the conviction being under Section 21 of that Ordinance. He was sentenced to eighteen months' rigorous imprisonment and to pay a fine of Rs. 20,000. On appeal, the Additional Sessions Judge of Sholapur reduced the fine to Rs. 12,000, but otherwise dismissed the appeal.

2. The accused was arrested under an order of the District Magistrate of Sholapur on January 6, 1932, and was sent to Bijapur jail. On February 25, an order was made, to the terms of which I will refer more particularly presently, but the general effect of the order, so far as is material, was that the accused should, within eighteen hours from leaving custody, report himself to the Police Sub-Inspector at Karmala, and thereafter should not leave the limits of Karmala, and that he should not, without the permission of the District Magistrate, enter the area comprised in Sholapur taluka excepting railway limits. That order was not served on the accused until March 3, but apparently its effect was communicated to him, and on February 28, he wrote to the Superintendent of the Bijapur jail stating that he desired to go to Bombay to see his daughter who was ill, and requesting the Superintendent to ask the District Magistrate of Sholapur to modify the conditions in the order so as to enable the accused to go to Bombay. That request of the accused was refused by the District Magistrate on March 3 (See Ex. 12). The accused was informed that the District Magistrate was not able to give the permission asked for, and that the matter had been referred to higher authority for orders, and that pending receipt of such orders, the District Magistrate's order under Section 4 of the Ordinance remained in force. It appears, however, that Government did in fact allow the accused to go to Bombay on his release from jail. He was released at 2 p. m. on March 3, he went to Bombay and stayed there for a week from the 4th, and the learned Public Prosecutor of Sholapur in this case on April 7 put in a purshis that the stay of accused from 4th to 11th at Bombay was condoned by Government, and as such it became legal, and therefore the Prosecution did not wish to make any point out of it in this case. So that, although we have not got any order in writing from Government, the accused was allowed to stay in Bombay until March 11. On March 10, the accused wrote to the District Magistrate of Sholapur a letter, which is Ex. 10, in which he says:-

I cannot go to Karmala as I am not acquainted with the place not having been there up till now. I am therefore coming direct to Sholapur and hereby beg to inform you of the same us per assurance given by me. I expect to present myself before the City Magistrate of Sholapur at about 12 noon on Saturday.

4. I think that in this letter the accused says quite plainly that he does not propose to obey the order which had been made upon him to go to Karmala, and that he proposes to present himself before the City Magistrate of Sholapur which would bo a plain breach of the order. In answer to that letter the District Magistrate, instead of allowing the accused to carry out his threat of breaking the order, wrote a letter, which is Ex. 7, in which he says:-

I have received your letter of yesterday and would point out to you that my order under Section 4 of the Ordinances II is still in force and that you are required to report to the Police Sub-Inspector at Karmala and to remain there. I must therefore ask you to accompany the bearer to see me immediately on the receipt of this, when I will hear any explanation that you may wish to give in the matter.

It appears from the evidence of the District Magistrate, who was called as a witness by the defence, and from other evidence called, that that letter was sent with a Sub-Inspector of Police to the Sholapur railway-station and was handed to the accused on his arrival; and the accused thereupon complied with the request in the letter and accompanied the Sub-Inspector to the District Magistrate's bungalow. At the bungalow a discussion took place, and it is admitted by the accused in his statement before the trial Magistrate that he was told by the District Magistrate that even then he might go to Karmala and comply with the order and he says:-

I told him (that is, the District Magistrate) that I could not comply with that order as there was no convenience for me to stay there.

So there again the accused threatened to disobey the order, and thereupon at 8 a.m. in the morning he was arrested at the District Magistrate's bungalow. He was charged originally with having committed a breach of Clause 6 of the order, but subsequently the charge was amended by including breaches of Clauses 5 and 7.

5. The first point taken by Mr. Thakor on behalf of the accused is that the order of the District Magistrate was invalid, because, he being the District Magistrate of Sholapur, had no right to make an order on a person in the District of Bijapur requiring him to come within the Sholapur district. In my opinion that point is really covered by the decision of the special bench of this Court in Emperor v. Balkrishna Phansalkar : (1932)34BOMLR1523 and I only desire to say that I adhere to the view which I expressed in that case that the effect of Section 57 of the Ordinance, and the Government Notification thereunder of January 5, 1932, is to confer upon the several District Magistrates jurisdiction within their own districts. But this order having been made by the District Magistrate of Sholapur, and it being an order to be carried out within the district, I do not see any objection to the order or to its having been served on the accused outside the district.

6. The more serious point is whether the accused is proved to have committed a breach of the order. The point most strenuously argued by the learned Advocate General is that there was a breach of Clause 6. Clause 6 is in these terms:-

Shall not with out the permission of the District Magistrate enter the area comprised in Sholapur taluka (excepting railway limits).

When the accused arrived at Sholapur station in the early morning of March 12, he was still within railway limits, and therefore he had not at that moment committed any offence. When he went to the District Magisirate's bungalow, he did so, as it seems to me, plainly with the permission of the District Magistrate. The District Magistrate in giving evidence says that he did not give per mission, by which I suppose he means that he did not intend to give permission. But in fact his letter (Ex. 7) is perfectly plain. He asks the accused to accompany the bearer to see him immediately, and he admits in his evidence that it was on account of that letter that the accused went to the District Magistrate's bungalow. So that there was clear-permission, and therefore the bungalow, as it seems to me, was not outside the permitted area. The learned Advocate General has argued, and argued strenuously, that, as soon as the accused in the course of the interview at the bungalow said that he did not intend to comply with the order, the District Magistrate's permission automatically came to an end. But I really have great difficulty in understanding that argument. The District Magistrate having not merely permitted, but requested, the accused to come to his bungalow for the purpose of having a discussion, it seems to me that the bungalow was on that request a permitted area-an area that is permitted to the accused, and I think it remained a permitted area throughout the conversation. Further, I think that the permission would plainly extend to enable the accused to go back to the place of safety from which he had started, namely, the railway-station. If the District Magistrate had allowed the accused to carry out his original intention of going to the City Magistrate, there would have been a plain breach of Clause 6, and if the District Magistrate had told the accused that he might leave the bungalow for the purpose of going back to the station, and the accused had not gone back to the station, there would have been again a plain breach. But it seems to me that the accused was not committing any breach of the order at the bungalow because he was there with the permission of the District Magistrate and he was not therefore liable to be arrested. I apprehend that the District Magistrate had really forgotten about the provisions of Clause 6 as to permission and that is probably the 'explanation of the trouble. The accused appears to have done his best to commit a breach of Clause 6 and the District Magistrate, as far as I can see, has 'successfully frustrated his efforts. In my opinion, therefore, there is no offence under Clause 6 of the order.

7. It is then said that there is an offence under Clause 5. Now, Clause 5 is in these terms:-

Shall within 18 hours from leaving custody report himself to the Police Sub-Inspector, Karmala, and thereafter shall not without the permission of the Police Sub-Inspector, Karmala, leave the area comprised within the Municipal limits of Karmala.

So far as the second part of that clause is concerned, it seems to me that the accused cannot be convicted of leaving the area comprised in the municipal limits of Karmala when in fact he has never entered that area. With regard to the first part, which requires the accused to report himself to the Police Sub-Inspector, Karmala, within eighteen hours from leaving custody, there was a clear breach of that part of the order at the expiration of the eighteen hours, which, was 10 a.m. on March 4. But it seems to me that that breach was a breach once for all, and was not in the nature of a continuing breach. The Government having allowed the accused to go to Bombay on leaving custody and to stay there for a week have, in my opinion, condoned the breach of Clause 5 consisting of the accused not having reported himself within eighteen hours. The lower appellate Court was of opinion that the Government in allowing the accused to stay in Bombay for a week did not intend to cancel, and did not in fact cancel, the order. With that conclusion I agree. The Government did not, I think, cancel the order, but what they did do was to condone the breach of Clause 5, and that breach being a single breach and not a continuing breach, it appears to me that the only offence capable of being committed under the first part of Clause 5 has been condoned and that the accused cannot, therefore, be convicted under that clause.

8. Then it is said that he has committed an offence under Clause 7. Clause 7 is in these terms:-

Shall report himself to a Police Officer at his Mr. Gulabchand Hirachand Doshi's place of residence or lodging, Karmala, daily at the hours of 7 a.m., 12 midday and 8 p.m.

It is of course a fact that the accused has not acquired a place of residence or lodging at Karmala and therefore it has not been possible to comply with that part of the order. But the learned Advocate General has argued with force that the accused cannot take advantage of his own wrong. He is bound under the clause to report himself to a police-officer at his, the accused's, place of residence or lodging, and I think the accused was bound under that clause to acquire with reasonable despatch a place of residence or lodging in order to put himself into a position to comply with the terms of the order. But the difficulty is that inasmuch as he was allowed by Government to be in Bombay until March 11, and he was arrested at 8 a.m. on March 12, the only time in which he could have reported under Clause 7 would be 7 a.m. on March 12, and it seems to me impossible to say that between leaving Bombay on the 11th and 7 a.m. on the 12th he ought to have acquired a residence or lodging at Karmala. That being so, I think it cannot be said that he has committed an offence under Clause 7. The result is that, in my opinion, the accused is not shown to have committed any offence under the order, and his conviction must, therefore, be sot aside.

9. It was argued by Mr. Thakor that even if the conviction was legal, the trial Magistrate being a First Class Magistrate could not impose a fine of more than Rs. 1,000. It is obviously not necessary to decide that point in the view we take as to the conviction. But as the lower appellate Court has referred to a decision of the special bench of this Court in Emperor v. Ramchandra Khadkikar : (1932)34BOMLR1676 and as Mr. Thakor relies on that case, I desire to say a few words about it. In delivering the judgment of the Court I merely said that the trial being by a First Class Magistrate and not by a Special Magistrate the fine of Rs. 1,500 was in excess of the sum which he was entitled to impose. No reasons for the judgment were given, and it is clear that there was no argument and no discussion. The learned Advocate General has explained that in that case he understood from his instructions that the First Class Magistrate who tried the case had not been given special powers under the Ordinance, and on that basis the Advocate General admitted that the fine was beyond the jurisdiction of the Magistrate In making our order we acted upon what the learned Advocate General told us to be the facts. It would now appear that either the learned Advocate General was wrongly instructed, or he mistook the meaning of his instructions, and that in fact the First Class Magistrate in that case had special powers under the Ordinance. Bat the case cannot be treated as an authority in any case in which the Magistrate has special powers under the Ordinance, because we clearly made our order on the basis that the facts were as we were told they were.

10. Conviction set aside and the accused to be set at liberty. Fine, if paid, to be refunded.

Murphy, J.

11. The applicant has been convicted under Section 21 of Ordinance No. II of 1932, and has been sentenced to eighteen months' rigorous imprisonment and Rs. 20,000 fine. His appeal to the Sessions Judge was rejected on the merits, though the fine was reduced to Rs. 12,000, and the matter is before us in revision.

12. A special bench of this Court has held in Emperor v. Balkrishna Phansalkar : (1932)34BOMLR1523 that we are competent to hear such an application, and the facts being parallel, we are bound by its decision. Arguments have been addressed to us on several points and some of these are questions of law.

13. The first point is that the District Magistrate's order is bad in law and void, the objection being that it is not covered by Section 4 of the Ordinance under which it was made. The point is really already concluded, for the special bench case I have referred to dealt with an order drawn up in almost exactly similar terms, the only difference being the name, the prescribed place of residence, and the period within which the order had to be obeyed. I think Section 4 of the Ordinance is wide enough to include the terms of this order, and also that the objection that such an order could not be made because the applicant was, at the time of its making, a prisoner under the orders of the District Magistrate who made it, in the prison at Bijapur, the adjoining district, is not valid. The section contemplates the making of orders forbidding a particular person from entering the district of the District Magistrate making the order-an order to be made by implication in the absence of the person against whom it is directed, and even under the ordinary law a proclaimed offender can be taken action against in his absence. Another possible view is that the order is good though it cannot take effect till the person against whom it is made enters the district, but it is not necessary to go to this length, for a warrant of arrest can be executed outside the local limits of the Magistrate issuing it. The learned Advocate General's argument was that under the notification the District Magistrate was vested with all the powers of the Local Government whose orders extend to the whole of the Presidency. This was my learned brother Broomfield's view on the terms of the notification in the special bench case. But it is not necessary to go to this length, for, apart from that argument, I think such an order can be made while the person against whom it is directed is outside the local limits of the authority making it. The argument as to the service of notice of the order is similar and such notice can, I think, by Sections 69 and 73 of the Criminal Procedure Code, be served outside the district. There is no question here that that is properly served on the applicant by the Jailor at Bijapur. The real question before us is to determine the order which has been disobeyed. The charge was for breaches of Clauses 5, 6 and 7 of the order of the District Magistrate. The first required the applicant on release from Bijapur jail to proceed to Karmala within eighteen hours. The second (No. 6) required him not to enter, except within railway limits, the Sholapur taluka, without the District Magistrate's leave, and the third to report daily to the police-officer at Karmala. The applicant never went to Karmala at all, and entered the limits of the Sholapur taluka on March 12 having been released on the 3rd. On the face of things there has been a breach of the order, but the circumstances have to be considered. His relations had apparently been negotiating with the District Magistrate, and admittedly on release the District Magistrate and Government allowed him to go to Bombay and to remain there for a week as his daughter was ill, but we do not know the terms of this suspension of the order. While in Bombay the applicant saw the Commissioner of Police and obtained some sort of countenance from him. At the expiration of the week, the applicant wrote to the District Magistrate saying he was coming to report himself to the City Magistrate, Sholapur, and arrived accordingly. Had he been allowed to do as he proposed, there would have been a clear disobedience of Clause 6 of the order. But he was met by a Sub-Inspector of Police at the Station and taken to the District Magistrate, who had sent him a letter in which it is stated that the terms of the original order still stood, but that he should go and see him. The applicant, at the interview, was offered several alternatives for his residence but insisted on remaining at Sholapur though apparently he would have been willing to go to Bombay. He was then and there arrested and prosecuted.

14. It is clear that the order to proceed to Karmala within eighteen hours had been abrogated by the permission to remain in Bombay for a week, though to what extent and in what terms this suspension had been made we do not know. It does not seem to me to be replaced by any other definite order or condition. It is clearly a suspension of the original order. That involves a change for the time being at any rate of the direction to proceed to Karmala and also to report himself three times a day to the police-officer at his residence there. Since the applicant had entered the Sholapur taluka with, at any rate, the consent of the District Magistrate, it is difficult to say that his entry was without the District Magistrate's permission. It is clear that he refused to leave Sholapur city and from a plain common sense point of view it might be held that this suffices to show contumacy and to justify his arrest and prosecution, and had he been allowed to carry out his original intention of seeing the City Magistrate or escorted back to the railway limits and then re-entered the city, his guilt would have been clear. But he was not allowed to do either of these things. This is a criminal prosecution involving heavy punishment, and where a clear and definite order is relied on as having been disobeyed, I think the prosecution must prove what the order really was and its actual transgression. On the state of the facts I cannot see any clear transgression of the letter of the order as modified by admitted concessions though no doubt its spirit was transgressed. I think that in these circumstances we must interfere with the conviction and sentence and set them both aside.